ABSTRACT
Australia’s design laws have been reviewed multiple times over the last 50 years. Recent calls for reform have focussed on stagnant registration rates and the perception that enforcement is a futile exercise. Although empirical economic researchers have explored these issues, this is the first empirical legal study of court-based enforcement under statutory design law. The results show that only 15 infringement cases reached a first-instance court over the 18-year period since the inception of the Designs Act 2003 (Cth). This article argues that design litigation fell after 2008, as courts clarified the parameters of the new design law, and contemporaneously clarified the utility of other related rights for designers. This article finds win rates are high at 80% (12/15 cases) and makes arguments that refute the fatalistic perception that courts favour the copier. However, this article also finds evidence relating to costs and complexity that validate some of the negative perceptions of court-based enforcement.
Huang, Vicki T, Empirical Analysis of Design Litigation in Australia (September 12, 2022). Forthcoming in Research Handbook on Empirical Studies in Intellectual Property Law, Estelle Derclaye, ed.
Leave a Reply